Welcome to Britain: Border control officers can seize personal data without reasonable suspicion

The detention of David Miranda, partner of <em>Guardian</em> journalist Glenn Greenwald, by border officials has put the spotlight on the powers conferred on the UK's border control officials by Schedule 7 to the Terrorism Act 2000.

How would you feel if the police stopped you on a whim, took your phone, your laptop, your digital camera, your MP3 player, your USB sticks and your memory cards then copied everything on them?

How would you feel if they told you they were going to keep all your photographs, your documents, your address book, your financial data, your browsing history, your emails, your chat logs, your electronic diary, your music and recordings and anything else they liked for at least six years - indeed maybe they’d keep them until you reached the age of a hundred in case they might prove useful one day?

How would you feel if they then demanded all of your passwords and threatened you with years in jail if you refused to hand them over?

Welcome to Britain.

These are the rights granted to the police at the border controls of this country.

Within the UK, police officers are authorised to seize phones and download information only after making an arrest. The border control officers have no such limitations.

Anyone entering or leaving the UK faces this possible treatment under port powers contained in Schedule 7 to the Terrorism Act 2000. No prior authorisation is needed to stop you and there does not need to be any suspicion. Your data can be kept even if you are not arrested and the police can find no evidence of any crime.

The Terrorism Act 2000 was introduced after the IRA ceasefire to make permanent previous emergency legislation that had been intended to be used for six months only but had been renewed and extended annually for 25 years. The new act is based on the recommendations of Lord Lloyd of Berwick's 1996 Inquiry yet arguably fails to address his concerns about human rights or meet his principle "that permanent anti-terrorist legislation should approximate as closely as possible to ordinary criminal law and procedure".

Each year around half a million people are stopped as they enter or leave the UK for screening questions which last for a few seconds or minutes. Nearly 70,000 are examined for longer periods. Less than 0.03 per cent of those questioned for longer are arrested.

The Office for Security and Counter-Terrorism advises that there are no national records kept of data downloads taken and that downloads are conducted at the examining officer’s discretion on a case-by-case basis but that they occur “in a substantial number of cases”.

Noting the arguments for allowing stops without suspicion, David Anderson QC, the independent reviewer of terrorism laws, warned in 2012 and again in 2013

...despite having made the necessary enquiries, I have not been able to identify from the police any case of a Schedule 7 examination leading directly to arrest followed by conviction in which the initial stop was not prompted by intelligence of some kind.

In spite of this the police still have the legal power to act on a hunch or a whim.

Whistleblower Edward Snowden memorably described the NSA and GCHQ spying apparatus as “turnkey totalitarianism”. When asked why the British seem so complacent about this, the academic, journalist and author John Naughton noted

“Britain has no recent historical experience of being invaded, and so the culture has no clear understanding of the consequences of intensive surveillance technology and records falling into the 'wrong' hands.”

The retention of data for as long as the state feels it might be useful, should alarm everyone. Everyone should have something to hide. Just because we live in a nominally democratic society right now doesn’t mean it will always be that way. Russia, ironically the first country to decriminalise homosexuality, is fast criminalising it again. Right now you would have good reason to feel worried if the Russian state was holding copies of your mobile telephone and computer data if that included evidence of your sexuality.

Within the UK, there is a growing litany of abuse by police officers being exposed. This is alleged to include spying on the friends and families of victims of police brutality, seemingly with the intent to discredit. How happy are you that your most intimate messages and photographs could be in the hands of people who have shown themselves only too willing to leak sensitive information to the press?

David Anderson has warned in his latest annual report on terror legislation in the UK:

The fact that such powers are useful does not automatically mean that they are proportionate. It is ultimately for Parliament, prompted if necessary by the courts, to strike the appropriate balance. Even if a no-suspicion power to stop and examine is thought acceptable, it might for example be possible to require some level of suspicion before a phone can be downloaded or a person can be taken into detention... by analogy with the proposal that reasonable suspicion should be required before a strip search is conducted.

The comparison to a strip search is a good one. As the boundaries between the physical and the digital dissolve and more of our most intimate moments and experiences occur in places that overlap both spheres, the cold scientific language of “data” and “downloads” becomes insufficient to describe the sense of violation such behaviour by the state can cause.

Borders are strange places. We accept perhaps that we may be subject to invasive procedures when we cross but at the very least we expect that there must be reasonable suspicion for the degrading experience of a strip or cavity search. In the same way, we must demand that at the very least that our personal data be considered inviolable unless there are very clear grounds for this invasion. Privacy is a right we should not surrender easily, yet without our paying attention the state signed it away for all people trying to enter or leave the country.

There are many grounds for concern about these laws and the reluctance of the government to consult on the issues raised by David Anderson in his review of them. That the data of innocent people stopped without a warrant and without clear grounds for suspicion can be kept effectively forever is wrong.

Due to an ambiguity over whether the existing act provides sufficient legal authority for this copying of personal data, the government has proposed an amendment inserting a new paragraph 11A into Schedule 7, headed “Power to make and retain copies” as part of The Anti-Social Behaviour, Crime and Policing Bill passing through Parliament at the moment.

Although the government’s intention is simply to protect itself from legal challenges, this is potentially an opportunity to have stricter controls over these extensive powers written into the law.

The Bill has just entered the report stage. MPs now have the chance to introduce proposals for change. Unfortunately there seems to be little government will to make any changes to a bill that gives way too much authority to the police with too little accountability and too few safeguards. Little wonder given how few people seem to be aware of these sweeping powers.

This article was originally published on ORG Zine and is crossposted here with the author's permission

Police on duty at Heathrow airport. Photo: Getty
Photo: Getty
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UnHerd's rejection of the new isn't as groundbreaking as it seems to think

Tim Montgomerie's new venture has some promise, but it's trying to solve an old problem.

Information overload is oft-cited as one of the main drawbacks of the modern age. There is simply too much to take in, especially when it comes to news. Hourly radio bulletins, rolling news channels and the constant stream of updates available from the internet – there is just more than any one person can consume. 

Luckily Tim Montgomerie, the founder of ConservativeHome and former Times comment editor, is here to help. Montgomerie is launching UnHerd, a new media venture that promises to pull back and focus on "the important things rather than the latest things". 

According to Montgomerie the site has a "package of investment", at least some of which comes from Paul Marshall. He is co-founder of one of Europe's largest hedge funds, Marshall Wace, formerly a longstanding Lib Dem, and also one of the main backers and chair of Ark Schools, an academy chain. The money behind the project is on display in UnHerd's swish (if slightly overwhelming) site, Google ads promoting the homepage, and article commissions worth up to $5,000. The selection of articles at launch includes an entertaining piece by Lionel Shriver on being a "news-aholic", though currently most of the bylines belong to Montgomerie himself. 

Guidelines for contributors, also meant to reflect the site's "values", contain some sensible advice. This includes breaking down ideas into bullet points, thinking about who is likely to read and promote articles, and footnoting facts. 

The guidelines also suggest focusing on what people will "still want to read in six, 12 or 24 months" and that will "be of interest to someone in Cincinnati or Perth as well as Vancouver or St Petersburg and Cape Town and Edinburgh" – though it's not quite clear how one of Montgomerie's early contributions, a defence of George Osborne's editorship of the Evening Standard, quite fits that global criteria. I'm sure it has nothing to do with the full page comment piece Montgomerie got in Osborne's paper to bemoan the deficiencies of modern media on the day UnHerd launched. 

UnHerd's mascot  – a cow – has also created some confusion, compounded by another line in the writing tips describing it as "a cow, who like our target readers, tends to avoid herds and behave in unmissable ways as a result". At least Montgomerie only picked the second-most famous poster animal for herding behaviour. It could have been a sheep. In any case, the line has since disappeared from the post – suggesting the zoological inadequacy of the metaphor may have been recognised. 

There is one way in which UnHerd perfectly embodies its stated aim of avoiding the new – the idea that we need to address the frenetic nature of modern news has been around for years.

"Slow news" – a more considered approach to what's going on in the world that takes in the bigger picture – has been talked about since at least the beginning of this decade.

In fact, it's been around so long that it has become positively mainstream. That pusher of rolling coverage the BBC has been talking about using slow news to counteract fake news, and Montgomerie's old employers, the Times decided last year to move to publishing digital editions at set points during the day, rather than constantly updating as stories break. Even the Guardian – which has most enthusiastically embraced the crack-cocaine of rolling web coverage, the live blog – also publishes regular long reads taking a deep dive into a weighty subject. 

UnHerd may well find an audience particularly attuned to its approach and values. It intends to introduce paid services – an especially good idea given the perverse incentives to chase traffic that come with relying on digital advertising. The ethos it is pitching may well help persuade people to pay, and I don't doubt Montgomerie will be able to find good writers who will deal with big ideas in interesting ways. 

But the idea UnHerd is offering a groundbreaking solution to information overload is faintly ludicrous. There are plenty of ways for people to disengage from the news cycle – and plenty of sources of information and good writing that allow people to do it while staying informed. It's just that given so many opportunities to stay up to date with what has just happened, few people decide they would rather not know.